The Committee on the Elimination of Racial Discrimination,
established under article 8 of the International Convention on the
Elimination of All Forms of Racial Discrimination,

Meeting on 12 March 1999,

Having concluded its consideration of communication
No. 8/1996, submitted to the Committee under article 14 of the International
Convention on the Elimination of All Forms of Racial Discrimination,

Having taken into consideration all written
information made available to it by the author and the State party,

Bearing in mind rule 95 of its rules of procedure
requiring it to formulate its opinion on the communication before
it,

Adopts the following:

OPINION

1. The author of the communication is B.M.S., an Australian
citizen since 1992 of Indian origin and a medical doctor. He claims
to be a victim of violations of the Convention by Australia. He
is represented by counsel.

The facts as submitted by the author

2.1 The author graduated from Osmania University (India).
He holds a diploma in Clinical Neurology (DCN) from the University
of London. He has practised medicine in England, India, Ireland
and the United States. For 10 years he has worked as a medical practitioner
under temporary registration in Australian public hospitals.

2.2 The author states that doctors trained overseas
who have sought medical registration in Australia have to undergo
and pass an examination involving two stages, a multiple choice
examination (MCQ) and a clinical examination. The whole process
is conducted by the Australian Medical Council (AMC), a non-governmental
organization partly funded by the Government.

2.3 In 1992, the Australian Minister of Health imposed
a quota on the number of doctors trained overseas who pass the first
stage of this examination. As a result, doctors who were trained
abroad and who are Australian residents and Australian citizens
may not be registered precisely because they fall outside the quota.
On the other hand, quota places may be allocated to persons without
any immigration status in Australia.

2.4 Following the imposition of the quota system the
author sat the MCQ examination on three occasions. He satisfied
the minimum requirements but was always prevented, by the quota
system, from proceeding to the clinical examination.

2.5 In March 1993, the author filed a formal discrimination
complaint with the Australian Human Rights and Equal Opportunity
Commission (HREOC) against the quota and the examination system.
In August 1995, the Commission found the quota policy unlawful
under
the Australian Racial Discrimination Act, considering it "grossly
unfair, resulting in unnecessary trauma, frustration and a deep
sense of injustice". As regards the examination system, the Commission
held that the decision to require the author to sit for and pass
examinations was not based on his national origin or on the consideration
that he was a person not of Australian or New Zealand origin.

2.6 The Australian Government and the AMC appealed
the decision of the HREOC. On 17 July 1996, the Federal Court of
Australia ruled in their favour, finding that the quota and the
examination system were reasonable.

2.7 The author did not appeal this decision to the
High Court of Australia. According to counsel the appeal to the
High Court is not an effective remedy within the meaning of article
14, paragraph 7 (a), of the Convention. On the one hand, there is
no automatic right of appeal to the High Court, since the Court
must first grant special leave to appeal. On the other hand, the
High Court has consistently stated that a prima facie case of error
will not of itself warrant the granting of an application for leave
to appeal. There must be some special feature which warrants the
attention of the Court, with its public role in developing and clarifying
the law and in maintaining procedural regularity in the lower courts,
outweighing the private rights of litigants.

2.8 Furthermore, the author did not have the means
to pursue the appeal without being awarded legal aid, and a cost
order would be imposed on him if the appeal was unsuccessful. In
fact, on 28 October 1996 Legal Aid advised that it would not fund
the author's appeal to the High Court.

2.9 In subsequent submissions counsel indicates that
following HREOC's decision and notwithstanding that an appeal had
been lodged, the AMC decided to abandon the quota. As a result all
overseas-trained doctors (OTDs) who, like the author, have met the
minimum requirements of the MCQ examination but have been prevented
from doing so by the quota, are now allowed to undertake the clinical
examination. The author has attempted the clinical examination on
several occasions. The examination has three components and it is
necessary to pass all the components at the one sitting. The author
has passed each component at least once but not all three at the
same sitting.

2.10 The standard of the AMC examination is supposedly
that of an Australian-trained medical student who is about to commence
an intern year. Counsel states that it is objectively preposterous
that a person of the author's experience, with 13 years working
as a doctor and 8 years in the Australian health system, is not
at least of the standard of a newly graduated medical student.

2.11 Studies on Australian medical graduates show
serious deficiencies in clinical skills. For example,
a University of Queensland study published in 1995 indicates
that at the
commencement of the intern year, medical staff did not consider
all graduates
competent even in history-taking and clinical-examination
skills and most graduates were not considered competent in such
areas
as
diagnosis, interpreting investigations, treatment procedures
and emergency procedures. At the conclusion of the intern
year, only
45 per cent of medical staff considered all interns competent
at history-taking and only 36 per cent of medical staff
considered all interns competent at physical examination. In
view of such
studies,
it is clear that overseas-trained doctors are examined
at a higher standard than Australian graduates. In the author's
case,
the fact
that the AMC persistently fails him raises the additional
question of whether he is being penalized for taking his
case to the HREOC.

The complaint

3.1 Counsel claims that both the AMC examination system
for overseas doctors as a whole and the quota itself are unlawful
and constitute racial discrimination. In this respect the judgement
of the Federal Court of Australia condones the discriminatory acts
of the Australian Government and the AMC and thereby reduces the
protection accorded to Australians under the Racial Discrimination
Act. At the same time, it eliminates any chance of reform of this
discriminatory legislation.

3.2 Counsel contends that the restrictions to practise
their profession imposed on overseas-trained doctors before they
can be registered aim at limiting the number of doctors to preserve
the more lucrative areas of medical practice for domestically trained
doctors.

State party's preliminary submission and author's
comments thereon

4.1 In a submission dated 7 January 1997 the State
party informs the Committee that in October 1995 the AMC decided
to discontinue the quota system following the HREOC's conclusion
that the system was racially discriminatory. That decision was taken
in spite of the Federal Court's ruling that the quota system was
reasonable and not racially discriminatory. As a result, the 281
candidates who had fallen outside the quota, including the author,
were informed that they were eligible to undertake the clinical
examinations.

4.2 The State party notes that the author has sat
the AMC clinical examination and failed it three times. As a result
of the HREOC's decision in the author's case an independent observer
appointed by the author was present during his first two attempts.
Under the current AMC regulations, he may resit the clinical examination
in the next two years, without having to resit the MCQ examination.
Currently, there is no restriction, other than satisfactory performance,
on the author's progress through the AMC examinations.

4.3 With respect to counsel's allegation that the
Federal Court ordered the author to pay the legal costs of the AMC,
the State party informs the Committee that in November 1996 the
AMC agreed to discontinue pursuit of costs against the author. The
Federal Court had made no order for costs in respect of the Commonwealth
of Australia, which agreed to bear its own costs.

4.4 In the light of the above the State party considers
the author's complaint to be moot.

5.1 In his comments, counsel informs the Committee
that the author does not wish to withdraw his communication. He
notes that although the quota system was discontinued it may be
reintroduced at any time in the light of the Federal Court's ruling
which overturned the HREOC's decision. According to counsel the
State party authorities have indeed contemplated the possibility
of reintroducing it.

5.2 Counsel reiterates that the discontinuation of
the quota has not solved the problem of discrimination, since the
AMC has simply increased the pass criteria to compensate for the
absence of the restrictive effects of the quota. He further claims
that although the author has been allowed to proceed to the clinical
examination he was failed on each occasion, in circumstances which
suggest that he is being penalized for having originally complained
to the HREOC. He has lodged a further complaint with the Commission
about this issue.

5.3 Furthermore, the fact that a discriminatory practice
has been discontinued does not change its previous discriminatory
nature or render void complaints concerning its application and
operation when it was still in force. Consequently, it is argued
that the author's rights were violated from 1992 to 1995, causing
him a detriment which has not been redressed by the discontinuation
of the quota system.

The Committee's admissibility decision and State
party's comments thereon

6.1 During its fifty-first session the Committee examined
the communication and noted that the main issues before it were:
(a) whether the State party had failed to meet its obligation under
article 5 (e) (i) to guarantee the author's right to work and free
choice of employment; and (b) whether the order of costs against
the author by the Federal Court violated the author's rights under
article 5 (a) to equal treatment before the courts.

6.2 On 19 August 1997 the Committee adopted a decision
by which it considered the communication admissible with respect
to the claim relating to the discriminatory nature of both the AMC
examination and its quota system. The Committee noted, inter
alia, that the Federal Court's decision provided a legal basis
for the reintroduction of the quota system at any time. The Committee
did not share the State party's reasoning that since the quota system
had been discontinued, the author's complaint for the discrimination
alleged to have taken place between 1992 and 1995 had become moot.
In respect of the fact that the author did not appeal the Federal
Court's decision to the High Court of Australia, the Committee considered
that even if this possibility were still open to the author, and
taking into account the length of the appeal process, the circumstances
of the case justified the conclusion that the application of domestic
remedies had been unreasonably prolonged.

6.3 The Committee declared the case inadmissible as
to the author's complaint that he was discriminated against because
the pass criteria had been raised, since that matter had been submitted
to the HREOC and therefore domestic remedies had not been exhausted.
It also considered the case inadmissible as to the author's claim
that costs ordered by the Court against him constituted discrimination,
in view of the State party's information that the AMC would not
be pursuing further the costs imposed by the Court.

6.4 By letter dated 24 December 1997 the State party
informed the Committee that its submission of 17 January
1997 contained a request for advice on whether the communication
was
ongoing. This
request was made because the alleged victim had effectively
received a remedy as a result of the Government's decision
to lift the quota.
This request did not constitute the State party's pleadings
on admissibility
and was not submitted under rule 92 of the Committee's
rules of procedure. The submission clearly indicated that if
the
Committee decided to proceed with its consideration of the
author's complaint
the State party would like to be given the opportunity
to make submissions
on the admissibility and merits of the communication.
The State party also indicated that it had never been advised
that
the
author had declined to withdraw his complaint.

6.5 By letter dated 11 March 1998 the Committee informed
the State party that rule 94, paragraph 6, of the Committee's rules
of procedure provides for the possibility of reviewing an admissibility
decision when the merits of a communication are examined. Accordingly,
the Committee would revisit its earlier decision on admissibility
upon receipt of relevant information from the State party.

State party's observations on admissibility
and merits

7.1 The State party submits that the author's interpretation
of the requirement imposed on overseas-trained doctors such as
himself to sit written and clinical examinations to demonstrate
competence
is incorrect. The author is not subject to the system of examinations
because of his (Indian) national origin, but because he has trained
at an overseas institution. All OTDs, regardless of national
origin, are required to sit the examinations. The objective of
the examination
process is to establish that medical practitioners trained in
medical institutions not accredited formally by the AMC have
the necessary
medical knowledge and clinical competence for the practice of
medicine with safety within the Australian community. Its standard
is the
level of attainment of medical knowledge and clinical skills
corresponding to that required of newly qualified graduates of Australian medical
schools who are about to commence intern training. The author has
sat the MCQ examinations on a total of six occasions. His first
three attempts predated the introduction of the quota in 1992. On
each occasion, he failed to reach the "pass mark". After the introduction
of the quota in 1992, the author sat the MCQ examination a further
three times. Whilst succeeding in obtaining a "pass", he did not
come within the top 200 candidates passing the MCQ and so was
unable to proceed to the clinical examination. When the quota
was discontinued,
the author was permitted to sit for the clinical examination
in March 1996, August 1996, October 1996 and March 1997. On each
occasion
he failed to demonstrate sufficient proficiency in each of the
subject
areas to be granted registration. He currently is on the waiting
list to sit the clinical examination again.

7.2 The State party submits that the scheme, in general
and in its application to the author, does not represent a breach
of Australia's obligations under article 5 (e) (i). The underlying
basis of the author's complaint is that OTDs, particularly those
who have "proven competence" through practice in Australian public
hospitals, should be similarly placed to doctors trained in AMC-accredited
schools. In the view of the Australian Government, however, graduates
of overseas universities and those from Australian and New Zealand
universities cannot be accepted as having equal medical competence
without further investigation. Educational standards vary across
the globe and the Australian Government is justified in taking
account
of this difference in devising schemes to test the comparability
of standards. To accept the author's complaint would be to engage
in a circular argument which prejudges the question of equivalence
of standards, a matter which the Australian Government is entitled
to question. The scheme in fact ensures equality of treatment.

7.3 Furthermore, the State party does not accept that
working in Australian hospitals under temporary registration is
necessarily sufficient proof of competence to justify the waiving
of examination requirements. When working under temporary registration,
overseas-trained doctors are subject to strict supervision and practice
requirements and may not be exposed to the broad range of medical
conditions which exist in the Australian community. Satisfactory
performance under such restricted conditions does not equate with
sufficient knowledge and competence over the range of areas of permitted
practice under general registration.

7.4 The requirement that OTDs sit for and pass AMC
examinations is not based on national origin. The distinction
made is on the basis of the identity of the medical school,
regardless of the national origin (or any other personal characteristic)
of the candidate seeking registration. In practice, no matter
the
race
or national origin of a candidate, that candidate must
fulfil the same requirements: either graduation from an accredited
medical school or the completion of AMC exams to demonstrate
an
equal
level
of competence to those who have successfully graduated
from an accredited
medical school. Thus, for instance, if a person of Indian
national origin studied overseas, he/she would have to sit
the AMC exams.
If he/she studied in Australia, he/she would be entitled
to proceed straight to an internship. Similarly, whether a person is of English
national origin, Australian national origin, Indian national
origin or any other national origin, the requirements remain
constant.

7.5 Furthermore, despite the author's implication
that the AMC has deliberately chosen not to accredit
overseas medical schools for reasons associated with racial discrimination,
there
is no evidence to suggest that the system was intended
to,
or in fact works to, the detriment of persons of a particular
race or
national origin. Contrary to the author's complaint,
the system of AMC examinations does not carry any imputation
regarding
the
attributes of individuals of particular national origins.
In particular,
the need to sit for such examinations does not imply that
doctors trained overseas, whether or not they have been practising
in Australia, are inferior because of their race, national
or ethnic
origin.
Instead,
it simply sends the message that all graduates of medical
schools
will be subject to the same standard of examination before being
permitted to work unconditionally in Australia.

7.6 The HREOC was satisfied that the accreditation
system was not based on race. The AMC's evidence, which
the HREOC accepted, was that accreditation was undertaken on
the
basis of
efficient use of resources. The AMC has considered it impractical
to investigate for the accreditation process every university
attended by applicants for registration. Given the wide range
of countries
from which immigrants to Australia come, there is concomitantly
an extremely large number of universities all around the
world from
which OTDs have graduated. The AMC does not have the
resources to undertake such an extensive accreditation, nor should
it
be expected
to. The Australian Government supports the reasonableness
of the allocation of the AMC's resources to accredit schools
with which
it has most familiarity and contact. It thus considers
an examination
to be an equitable system of adjudging standards of competence
by persons, regardless of race or national origin. The
accreditation of New Zealand medical schools, in particular,
is explainable
in
terms of the mutual accreditation programme carried out
by the Australian Medical Council and the Medical Council of
New Zealand.

7.7 The State party does not accept the author's allegation
that the system privileges Australian and New Zealand doctors
and disadvantages doctors trained outside Australia and New Zealand.
Even if (for the purposes of argument) such a benefit or disadvantage
could be established, such an effect would not constitute discrimination
on the basis of "national origin" or any other prescribed ground
under the Convention. The group who are privileged under this
scenario are those trained in Australian and New Zealand medical schools,
rather than persons of particular national origin. Medical students
in Australia do not share a single national origin. Similarly,
those
who are OTDs are not of a single national origin. Whilst the
latter group are likely "not to be of Australian national origin", the
Australian Government does not accept that such a broad category
of persons represents a "national origin" or racial classification
for the purposes of article 5 (e) (i). For the purposes of article
5 (e) (i), it would be necessary to demonstrate discrimination
on
the basis of a person's particular national origin - in this
case, the author's Indian national origin.

7.8 The current system of examinations is clearly
based on objective and reasonable criteria. It is a legitimate
policy objective for the Australian Government to seek
to maintain high
standards of medical care for its residents and to seek
to assure itself of the standards of medical competence of those
seeking to
work in Australia on an unsupervised basis. Thus, it
is reasonable
for legislatures to institute a means of supplementary
exams for
those trained in universities with which it is not familiar
to ensure
that their competence is at a comparable level to those
trained within Australia and New Zealand. That the author would
prefer
an
alternative method of evaluating competence does not
detract from the reasonableness of the current system. It is
within
a State's discretion to take the view which has been adopted
- that
an examination
is the best method to test for overall knowledge. The
reasonableness of such a system is also demonstrated by the
extent to which
similar practices are adopted by other States parties to
the Convention, such as the United Kingdom, Canada, the United
States
and New
Zealand.

7.9 The need for doctors to demonstrate their competence
could also be regarded as outside the realm of "discrimination" by reason of it being an inherent occupational requirement. Although
the Convention does not explicitly mention such an exception,
it would seem in keeping with the spirit of the Convention for
the
Committee to recognize that measures based on the inherent requirements
of jobs do not represent discrimination, in a similar way to
the recognition of the principle in article 1 (2) of the ILO
Convention
(No. 111) concerning Discrimination in respect of Employment
and Occupation.

7.10 The State party submits that there has been no
relevant impairment of the right to work or free choice of employment
through the current scheme. The institution of regulatory schemes
governing the prerequisites for admission to practise in a particular
profession and applying equally to all does not infringe or impair
an individual's right to work. Implicit in the author's complaint
is that he should have the right to work as a doctor and the right
to have his qualifications recognized by the health authorities
in Australia without undergoing any form of external examination.
In the Australian Government's view, such an argument misunderstands
the nature of the internationally recognized right to work.

7.11 Under international law, the right to work does
not confer a right to work in the position of one's choice. Instead,
by recognizing the right to work, States parties undertake not to
inhibit employment opportunities and to work towards the implementation
of policies and measures aimed at ensuring there is work for those
seeking it. In the current context the Australian Government is
not impairing anyone's right to work. In fact, the relevant legislative
schemes merely regulate the means of practising a particular profession.

7.12 The system of admission to unrestricted practice
does not impair the right of anyone to free choice of employment,
let alone persons of a particular national origin. Recognition of
a right to free choice of employment is designed to prevent forced
labour, not to guarantee an individual the right to the particular
job he/she desires. In the present context, there is no servitude
or forced labour regime which impairs the choice of employment of
doctors of a particular national origin. Instead, there is a system
of examinations which permits entry into unrestricted practice.

7.13 Similarly, whilst counsel has attempted to argue
that the author is equally placed to Australian doctors
in terms of competence and that his experience should be a sufficient
demonstration
of competence, the State party submits that there is no
evidence
that doctors of Indian national origin should be treated
differently to overseas-trained doctors of other national origins.
Nor
is there compelling evidence to suggest that the subjection
of the
author
to the AMC examinations is unreasonable and evidence of
racial discrimination.
Despite counsel's reliance on the author's practice in
public hospitals, the State party notes that at all relevant
times,
the author's practice
has been circumscribed by strict supervision and limited
practice requirements commensurate with his status as a conditional
registrant.
The State party would thus reject any implication that his work
in Australia demonstrates sufficient competence to warrant
automatic general registration.

7.14 The State party denies that the standard of the
AMC examinations is higher than that expected of students
at Australian and New Zealand medical schools. Steps have been
taken
to ensure
the comparability of the examination system, including:
(a) the appointment of a Board of Examiners with broad experience
in teaching
and examining undergraduates, and therefore familiar with
the
curricula of Australian university medical schools; (b) the
use of a bank
of approximately 3,000 MCQ questions mostly drawn from
MCQ examination papers of the medical schools of Australian universities
and
questions specifically commissioned by the AMC from Australian
medical schools;
(c) the MCQ examination papers are marked by Educational
Testing
Centre at the University of New South Wales, a major national
testing authority which also provides information in relation to the statistical
reliability and validity of the questions. If data indicate
that a particular question fails as a discriminator of performance,
or
if there is evidence to suggest that a question could
be misleading, the Board of Examiners is able to delete that
question
from the
examination; (d) instructing both the MCQ and clinical
examiners to the effect that the examinations should be directed
to establishing
whether AMC candidates have the same level of medical knowledge
and medical skills as new graduates.

7.15 The past practice of adjustment of raw scores
in the MCQ examination does not reflect any racial discrimination,
or a racially discriminatory quota. Such adjustment was designed
as a method of standardization to prevent unrepresentative results
based on the particular examination.

7.16 Other than his particular complaints about his
failure to pass the examinations, the author has not advanced any
objective evidence to support the non-comparability of the examination
standards. The only study produced by the author's counsel merely
comments on perceptions of deficiencies in the standard of first
year interns, rather than the comparability of the forms of examination
to which OTDs and AMC-accredited medical students are subject.

7.17 Quite apart from the nature of the examinations
in themselves, the author has failed to make a case that
any disparity in standards of the MCQ examinations and standards
at AMC-accredited
universities has the purpose or effect of discriminating
against
persons of a particular national origin. When the figures
of national origin and success rates in the MCQ are compared,
there
is no evidence
of discrimination against persons of a particular national
origin. In particular, there is no evidence that persons of
Indian national
origin are less likely than persons of other national origin
to pass the examination. The State party provides a table
of results in the 1994 exams (the last year in which the quota
applied),
showing
that Indian students' success rates in the AMC exams are
proportionate to their entry levels in the examinations. Whilst Indian doctors
comprised 16.48 per cent of doctors attempting the MCQ
examination in 1994, they represented 16.83 per cent of those
successfully
passing
the MCQ examination.

7.18 The author alleges that during the period of
the operation of the quota system between July 1992 and October
1995, the exclusion of OTDs such as himself from the AMC clinical
examination on the basis of his quota ranking constituted racial
discrimination and was a denial of his right to equal enjoyment
of the right to work and free choice of employment under article
5 (e) (i).

7.19 When the Australian Health Ministers' Conference
(AHMC) resolved to introduce the quota on OTDs in early
1992, the OTDs in the process of undergoing the AMC examinations
numbered approximately 4,500, almost four times the number
of doctors
expected to graduate from Australian medical schools. In
the face
of such
a large number of OTDs seeking to practise in Australia
and mindful of the national workforce supply target (set at one
doctor
per
500
persons), the AHMC adopted a National Medical Workforce
Strategy comprising a number of initiatives. One of them was
the introduction
of a quota on the numbers of OTDs who would be allowed
to sit the clinical examination, having passed the MCQ examination.
Thus, the
AHMC requested the AMC to set a cap of 200 on the number
of candidates
proceeding annually to the clinical examinations. The request was
made on the basis of: (a) the number of doctors needed
to service the Australian community to requisite standards;
(b)
the cost
of the provision of medical services under an open-ended
funding commitment
and the impact on that cost of a more than optimum number
of doctors; (c) the geographic distribution of doctors;
and (d)
the degree
to
which the supply of doctors is sufficient to meet the
needs of particular community groups and particular specialities.

7.20 The quota was not racially discriminatory in
any form. Firstly, it applied to all OTDs regardless of national
origin, with persons of a variety of national origins, including
Australians, being subject to the requirement. Nor is there any
evidence that the quota disproportionately affected persons of Indian
national origin. In evidence before the Federal Court, for example,
the proportion of doctors of Indian birth gaining entry to the quota
was in fact marginally higher than the percentage of doctors of
Indian birth attempting the MCQ examination. Furthermore, the quota
on doctors trained overseas was complemented by the pre-existing
de facto quota on students seeking entry to Australian medical schools.

7.21 Secondly, even if the quota could be considered
to have benefited those who have attended Australian and New Zealand
medical schools, such persons are not characterized by a national
origin. Instead, they would be likely to share citizenship, a factor
outside the realm of the Convention.

7.22 Thirdly, even if (for the purposes of argument)
the Committee was of the view that the quota represented
a distinction on the basis of national origin, the State party
would
submit that
the quota was a reasonable measure, proportionate to meeting
the State's legitimate interest in controlling the number
of health-care providers and hence was not an arbitrary distinction.
Such a
purpose
is not inconsistent with the Convention and would only
infringe
the Convention if such policies, designed to deal with
the supply of medical professionals, disguised racial discrimination.
Whilst
the details of the quota were subject to some criticism
by
the HREOC
(in that it did not provide for a waiting list, but required
OTDs not initially successful in coming within the annual
quota to undergo
the examination again), such a factor does not make the quota unreasonable
or discriminatory.

7.23 As the State party has previously noted, the
quota is no longer in existence and the author has been permitted
to sit for the clinical examination on several occasions. He has
thus been afforded a remedy, if any was required. The State party's
view remains that the subject matter is moot.

7.24 The State party further considers that the author's
complaint concerning the application of the quota to all OTDs regardless
of citizenship status does not fall within the terms of the Convention.
Under article 1 (2) of the Convention States parties are not prohibited
from discriminating on the basis of citizenship. Conversely, the
imposition of a system which does not take account of citizenship
cannot be the basis of complaint under the Convention.

7.25 Furthermore, the State party denies that the
judgement of the Federal Court has the effect of reducing the protection
accorded to Australians under the Racial Discrimination Act 1975.
The issues raised by the author under this allegation relate primarily
to the interpretation of domestic legislation which should not be
the subject of separate investigation by the Committee. The Racial
Discrimination Act 1975 remains an appropriate and effective means
of eradicating racial discrimination.

7.26 Finally, the State party notes the author's allegations
that Australia continues to act in violation of article 5 (e) (i)
on the grounds that the AMC has raised the pass criteria for the
clinical examination to compensate for the discontinuation of the
quota system. The author alleges that his failure to pass the clinical
examination is evidence of this practice and of the fact that he
is being victimized for lodging his original complaint with the
HREOC in 1995. The State party contends that this complaint continues
to be subject to the investigation of the HREOC and thus remains
an inappropriate subject for the Committee's examination.

Counsel's comments

8.1 In his response to the State party's observations
counsel indicates that unlike other countries where both
local graduates and overseas-trained doctors are assessed by
sitting exactly the
same national licensing examination, in Australia there
is a differential system with one regime for overseas-trained
doctors
and another
for Australian graduates. The Australian graduate is
assessed by his/her university on the basis of what he/she has
been
taught.
It is primarily an exercise in curriculum recall rather
that an
assessment of essential medical knowledge and clinical
competence. The Australian Medical Council's own witnesses in
the author's
case
before the HREOC have conceded that in undergraduate
assessment the aim is to try and pass the student. Indeed, pass
rates
for final-year
medical students in Australian universities are close to 100 per
cent. On the contrary, the AMC MCQ examination purports
to assess whether a doctor possesses sufficient knowledge
for
safe practice.
In 1995 the Australian Medical Council conducted a trial
in which its 1994 MCQ paper was submitted to final-year
medical students
at Monash University and Sydney University. The results
of the trial
clearly reveal that a higher assessment standard is applied
to OTDs than to Australian graduates and that the quota
served to
disadvantage
overseas doctors when compared to local graduates.

8.2 As regards the AMC clinical examination, the differential
nature of the system is even more manifest. The author has attempted
the AMC clinical examination on four occasions. On each occasion
he has been failed. He lodged a further complaint with the HREOC,
which has not issued a decision yet. In the course of the hearing,
the true nature of the AMC clinical examination system has been
revealed. It has been exposed as a chaotic, unstructured and unreliable
assessment tool which, in form and content, departs markedly from
the system used to assess students in Australian universities. Moreover,
the AMC's own internal working parties have emphasized the inadequacies
of its examination system and the need to improve its reliability
and validity.

8.3 Counsel provides a table showing pass rates in
the AMC clinical examination by country of birth during the period
1995 to 1997. The pass rate for persons born in India is 45.9
per cent, for those born in the Middle East 43.6 per cent and
for those
born in Asia 43.5 per cent. For those born in the United States
or Canada the pass rate is 55.6 per cent, for Western Europe
62.5 per cent, for the United Kingdom and Ireland 77.1 per cent
and
for
South Africa 81.1 per cent. Counsel wonders whether these differential
pass rates are merely a reflection of the quality of medical
education in the countries in question or whether conscious or
unconscious
perceptions of racial "compatibility" play a part. It is well established
that many people make conscious or unconscious judgements about
a person's competence on the basis of race and colour and if
an examination system has a format that gives free rein to any
prejudices
that may exist, then it is not competence alone which determines
the result. Counsel also quotes a number of reports and statements
by Australian institutions indicating that the country needs
more trained doctors and that the system of accreditation of
overseas-trained
doctors is unfair and discriminatory.

8.4 With respect to the quota system, counsel argues
that the quota was a quantitative control designed to
shut out a number of overseas-trained doctors not because they
were
trained
overseas but because they were from overseas. There is
a close correlation
between place of birth and place of training in that
most people are educated in their country of birth. Accordingly,
a restriction
purportedly based on place of training is effectively a
restriction based on national origin, particularly if that restriction
is
in no way connected to the issue of training. He also states
that in
the author's 1995 case before the HREOC there was no
clear
evidence
of an oversupply of doctors in the country. Rather, it
was the increase
in the number of Australian medical graduates coupled
with the automatic registration of doctors from the United Kingdom (which existed until
recently) which had been the major reasons for the increase
in doctors' numbers. It was also emphasized that the principal
supply
problem
was one of geographical distribution of doctors, that
the imposition of the quota was motivated by a desire to restrict
the number
of doctors to control the health expenditures of Commonwealth
countries (and protect doctors' incomes) and that the Health
Ministers'
advisers
were advocating immigration quotas, not examination quotas.
The only reasonable conclusion to be drawn from the evidence
of the
Government's own witnesses and reports was that the decision
to impose the quota was based not on fact and analysis but
on
feelings and perceptions.

8.5 The State party asserts that the author has been
practising medicine in Australia under temporary registration
and that he is subject to strict supervision and practice
requirements while working as a practitioner in the public hospital
system.
This
statement is totally untrue. The author has now worked
as a doctor for 14 years, 10 of which have been in Australian
public
hospitals.
He is classified as a Senior Hospital Medical Officer Year
5
and in his last position at Maroondah Hospital (a large hospital
in
Melbourne) he was the Night Senior, i. e. he was in charge
of the whole hospital at night. Unfortunately, he is now unable
to
practise
even under temporary registration. The Medical Board of
Victoria, following advice from the Australian Medical Council
regarding
his
examination results, has placed such tight restrictions
on this
registration that it has made him unemployable.

8.6 The State party asserts that the United States,
Canada, the United Kingdom and New Zealand have similar examination
systems to Australia. It does not say, however, that while the United
States and Canada have an initial evaluating examination for overseas-trained
doctors, the licensing examination is the same for both overseas-trained
and locally-trained doctors. Thus, there is not a differential system
allowing differential standards and open to abuse, as is the case
in Australia.

8.7 Counsel further states that the right to work
must embrace the right to be fairly assessed to work in the occupation
for which a person is qualified and not to be denied that right
by reasons of a capricious assessment system or quota.

Issues and proceedings before the Committee

9.1 In accordance with rule 94, paragraph 6, of its
rules of procedure, the Committee reconsidered the question of admissibility
in the light of the observations made by the State party with respect
to the Committee's decision of 19 August 1997 that declared the
communication admissible. The Committee, however, did not find reasons
to revoke its previous decision, since the State party's observations
as well as the author's comments thereon referred mainly to the
substance of the matter. In the circumstances, the Committee proceeded
with the examination of the merits.

9.2 The main issue before the Committee is whether
the examination and the quota system for overseas-trained
doctors respect the author's right, under article 5 (e) (i)
of the Convention,
to work and to free choice of employment. The Committee
notes in this respect that all overseas-trained doctors are subjected
to
the same quota system and are required to sit the same
written
and
clinical examinations, irrespective of their race or
national origin. Furthermore, on the basis of the information
provided
by the author
it is not possible to reach the conclusion that the system
works to the detriment of persons of a particular race or
national origin.
Even if the system favours doctors trained in Australian
and New Zealand medical schools such an effect would not necessarily
constitute
discrimination on the basis of race or national origin since, according
to the information provided, medical students in Australia
do not share a single national origin.

9.3 In the Committee's view, there is no evidence
to support the author's argument that he has been penalized in the
clinical examination for having complained to the HREOC, in view
of the fact that an independent observer, appointed by him, was
present during two of his attempts.

10. The Committee on the Elimination of Racial Discrimination,
acting under article 14, paragraph 7 (a), of the International Convention
on the Elimination of All Forms of Racial Discrimination, is of
the opinion that the facts as submitted do not disclose a violation
of article 5 (e) (i) or any other provision of the Convention.

11.1 Pursuant to article 14, paragraph 7 (b), of the
Convention, the Committee recommends that the State party take all
necessary measures and give transparency to the procedure and curriculum
established and conducted by the Australian Medical Council, so
that the system is in no way discriminatory towards foreign candidates
irrespective of their race or national or ethnic origin.

11.2 After considering several complaints concerning
Australia under article 14 of the Convention, the Committee also
recommends to the State party that every effort be made to avoid
any delay in the consideration of all complaints by the Human Rights
and Equal Opportunity Commission.

[Done in English, French, Russian and Spanish, the
English text being the original version.]